U.S. v. Dichne
| Decision Date | 17 March 1980 |
| Docket Number | No. 243,D,243 |
| Citation | 612 F.2d 632 |
| Parties | UNITED STATES of America, Appellee, v. Zeev DICHNE, Defendant-Appellant. ocket 79-1230. |
| Court | U.S. Court of Appeals — Second Circuit |
Jerry L. Siegel, Asst. U. S. Atty., Southern District of New York, New York City (Robert B. Fiske, Jr., U. S. Atty., David C. Patterson, Asst. U. S. Atty., New York City, of counsel), for appellee.
John S. Martin, Jr., New York City (Schulte & McGoldrick, Stacey J. Moritz New York City, of counsel), for defendant-appellant.
Before MOORE, OAKES and NEWMAN, Circuit Judges.
Zeev Dichne appeals his conviction in the United States District Court for the Southern District of New York (Honorable Richard Owen, District Judge ), based upon a non-jury trial and stipulated evidence submitted to the Court. Dichne offered no proof. He was convicted of violating the reporting requirements of what is known as the Bank Secrecy Act (31 U.S.C. § 1051 Et seq.) (hereinafter the "Act"). The judgment provided for a sentence of eighteen months, three months of which was to be served in jail, the balance suspended with unsupervised probation and a $10,000 fine. Dichne appeals on the following grounds: (1) the Government failed to prove beyond a reasonable doubt that he had knowledge of the reporting requirements of the Act; (2) the reporting provisions of the Act violate his fifth amendment right against self-incrimination; and (3) the District Court committed reversible error when it failed to observe the time provisions of the Speedy Trial Act (18 U.S.C. § 3161 Et seq.). We affirm the conviction.
Zeev Dichne, Arie Marinsky and Rustamali Tejpar were indicted and charged with conspiracy to evade the foreign reporting requirements of the Act, 31 U.S.C. §§ 1059 and 1101(a), by planning and partially executing a conspiracy to transport approximately $2,000,000 in monetary instruments out of the United States without filing the required currency transaction forms. Because the defendants Marinsky and Tejpar were fugitives at the time of trial, Dichne was the sole defendant.
Prior to trial Dichne moved unsuccessfully to dismiss the indictment against him on the ground that the reporting requirements of the Act violated his fifth amendment right against self-incrimination. Thereafter, the Government moved for an extension of the time limits set forth in the Speedy Trial Act, 18 U.S.C. § 3161(g), on the ground that a principal government witness had himself been indicted and was therefore unavailable to testify. Although Dichne contested this motion, the Court below granted the Government's request and ordered an extension of the relevant time period.
On April 20, 1979, the date set for trial, defendant Dichne waived his right to a jury trial and stipulated to the evidence which the Government would introduce. On the basis of the stipulated evidence, Dichne moved for a judgment of acquittal on the ground that the United States had failed to prove beyond a reasonable doubt that he had notice of the reporting requirements of the Act. The Court denied the defendant's motion and on May 11, 1979 entered a judgment finding the defendant guilty as charged in the indictment.
The stipulated evidence revealed the following: Zeev Dichne was a self-employed export-import and financial broker. In August of 1976, Dichne was introduced to Joseph Hauser, a self-employed insurance salesman who controlled and operated a number of insurance companies involved in providing health care insurance to labor unions. Hauser was interested in transporting out of the United States money apparently stolen from a fund allocated for the payment of health and welfare claims of union members.
Approximately one month later, Dichne, acting on behalf of Hauser, approached a former business associate, Theodore Arnold, in Zurich, Switzerland, and asked him if he knew someone who could secretly move some United States currency from the United States to Switzerland. Arnold thereafter contacted the defendant Tejpar, who in turn contacted an associate of his in New York, one Friedrich Jaegar, and asked if he would be interested in participating in the smuggling transaction. Unbeknownst to the other participants, Jaeger subsequently notified Special Agent John Martinez of the United States Customs Service of the planned transaction.
On October 4, 1976, Jaeger had conversations with Tejpar which were recorded. Jaeger told Tejpar that confirmed cashier's checks drawn on the United Americas Bank in New York would be used to carry out the transaction. Tejpar informed Jaeger that Dichne was representing the organization that wished to move $2,000,000 (the initial amount to be moved) out of the country, and that Dichne would be present in Los Angeles for the transaction. Through further discussion Jaeger and Tejpar agreed that the transaction would be carried out by their accompanying Dichne to the Bank of America in Los Angeles, where $450,000 in cash (the first installment to be moved) would be deposited. Jaeger would then give Dichne three cashier's drafts totalling $450,000 confirmed by the United Americas Bank.
On Tuesday, October 5, Jaeger had three bank drafts made payable to bearer prepared by the United Americas Bank in the amount of $150,000 each. Later that same day Tejpar arrived at the airport in New York and was met there by Jaeger and Special Agent John Martinez, posing as Jaeger's armed bodyguard. Tejpar told Jaeger that Dichne would be the one who would actually carry the checks from Los Angeles to Zurich, Switzerland, where they would be deposited.
The following day, Tejpar, Jaeger and Agent Martinez arrived in Los Angeles and met Dichne, Marinsky, and Hauser. Dichne had arrived in the United States on October 1, 1976, and at that time had filled out a Customs Baggage Declaration upon which he answered "No" in response to the question "Are you or anyone in your party carrying over $5,000 in coin, currency or monetary instruments?"
On the morning of October 6, 1976, Tejpar met with Jaeger and Special Agent Martinez, and informed them that Dichne preferred to use a bank draft drawn on a Los Angeles bank, rather than the cashier's checks from the United Americas Bank which had been planned. Dichne informed Jaeger that the bearer instrument had to be ready at the bank when they deposited the cash. Dichne stated that he did not want to have to wait at the bank for a check to be issued because he did not want any questions asked and did not want to be told that the transaction had to be reported to the Internal Revenue Service.
Jaeger later met with Dichne and Tejpar and told them the transaction was set and that he was going to the bank to open up an account and make arrangements for the check. Dichne wanted the check to be made payable to "Bearer", but when Jaeger informed him that no American bank would do this, it was agreed that the check would be made payable to Tejpar, and that he would immediately endorse it, thus rendering it negotiable, and give it to Dichne.
Jaeger and Special Agent Martinez then proceeded to a local bank where they opened an account and arranged for a $375,000 check to be drawn, payable to Tejpar, upon the deposit later in the day of $400,000 in cash (apparently the other $50,000 in cash was not forthcoming). Dichne produced from his hotel room $400,000 in American currency in denominations of $20, $50 and $100 bills. Later, Dichne, Tejpar, Jaegar and Special Agent Martinez proceeded to the bank where the account had been opened. At the bank the cash was deposited into the newly opened account, and a cashier's check in the amount of $375,000 was received back, payable to "Rustam Tejpar". On Dichne's instructions, Tejpar then endorsed the check in blank and handed it to Dichne, who put it in his pocket.
Later that day Dichne and Marinsky proceeded to the Los Angeles airport where they were met by Hauser. Dichne, Marinsky and Hauser proceeded to the boarding area for a British Airways flight to London. During the time Dichne, Marinsky and Hauser were observed in the departure area, United States Customs Inspector Conrad Millan read an announcement concerning the United States monetary reporting requirements over the public address system on four separate occasions. 1 In addition, a number of large color posters explaining the reporting requirements were prominently displayed throughout the departure area. 2 Neither Dichne, Marinsky nor Hauser asked or attempted to ask anyone for the required monetary instrument reporting forms, and no such form was in fact prepared before Dichne, Marinsky and Hauser departed aboard a flight to London. The check was eventually presented for payment at a Swiss Bank.
The Bank Secrecy Act requires that anyone who knowingly transports monetary instruments into or out of the United States in an amount exceeding $5,000 on any one occasion must file the appropriate report. 31 U.S.C. § 1101. 3 Title 31 U.S.C. §§ 1058 and 1059 provide criminal sanctions for the willful violation of any section of the Act, including, Inter alia, § 1101. Because the language of these sections of the Act imposes criminal liability only upon an individual who Knowingly transports monetary instruments in Willful violation of the Act, and because the Act requires the reporting of an otherwise innocent act, it has consistently been held that the Government must prove beyond a reasonable doubt the defendant's "knowledge of the reporting requirement and his specific intent to commit the crime". United States v. Granda, 565 F.2d 922, 926 (5th Cir. 1978). Accord United States v. San Juan, 545 F.2d 314, 318-19 (2d Cir. 1976); United States v. Schnaiderman, 568 F.2d 1208, 1211 (5th Cir. 1978).
Appellant argues that the stipulated evidence failed to establish beyond a reasonable doubt that he was aware of the...
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